United States Court of Appeals
For the First Circuit
No. 01-2624
THOMAS F. WALLACE,
Plaintiff, Appellant,
v.
O.C. TANNER RECOGNITION COMPANY, O.C. TANNER SALES COMPANY,
AND O.C. TANNER COMPANY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
David Rapaport with whom Rapaport & Rapaport was on brief for
appellant.
Mark W. Batten with whom Bingham McCutchen,LLP was on brief
for appellees.
August 14, 2002
COFFIN, Senior Circuit Judge. Appellant Thomas Wallace was
fifty-three years old when he was terminated from O.C. Tanner
Company ("Tanner") after twenty years of employment and repeated
recognition as one of the company's top sales managers. He
disputes the company's claim that he was spending excessive time on
a personal project that he had concealed from Tanner officials, and
claims that age discrimination led the company to replace him with
his thirty-six-year-old subordinate. The district court granted
summary judgment for appellee Tanner, finding that Wallace failed
to allege sufficient evidence of age-based animus. We affirm.
I. Background
O.C. Tanner Company, based in Salt Lake City, Utah, assists
companies in developing programs to recognize and reward their
employees. Its services include providing custom gifts or jewelry
for service anniversaries. Tanner hired appellant in 1975 to help
develop a market in the Northeast. He began as a salesperson in
the Boston area, advanced to Regional Sales Manager as the
supervisor of several other employees, and achieved a record of
superior performance in generating new business. His region ranked
in the top ten for sales for twelve of the last fifteen years of
his employment, and among other recognitions, he shared the "Most
Impressive Customer Commitment Award" with another regional manager
in 1992.
In July 1996, however, the Sales Director for the Boston
region (and appellant's superior), Rulon Horne, drafted a memo
identifying eight concerns that had developed about appellant's
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performance and other work-related matters. According to Horne,
appellant's personal sales numbers had been lagging and he had
become less involved in the region's business and activities. Doug
Duckworth, Horne's predecessor, testified that he communicated a
similar concern about appellant's "lack of involvement" in the
region to Horne during the transition in sales directors earlier in
the year. In addition to declining sales, the issues identified in
Horne's memo included appellant's intimidating management style,
lack of respect for Horne, resistance to signing a confidentiality
agreement, and the lack of growth in repeat sales in the Boston
region. Horne also noted two operational changes the company
wished to effectuate in the Boston office: (1) to end the
relationship with appellant's wife's brochure business, and (2) to
either relocate the regional office from a building owned by
appellant or obtain a lease from him. Finally, the memo noted
appellant's minimal use of his laptop computer, which frustrated
the company's effort to track activity at its field offices.
A few days after writing the memo, Horne met with his
superiors to discuss his concerns. Present at the meeting, which
was held at the corporate office in Salt Lake City, were Tanner's
chief executive officer, Don Ostler; its president, Kent Murdock;
the executive vice president of sales, Tim Treu; and the vice
president of sales, Dale Sansom. The group agreed that appellant
would be offered the opportunity to correct the problems, and Horne
and Treu arranged to meet with Wallace in Boston at the end of
August.
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In sessions on August 27 and 28, Horne and Treu reviewed with
appellant the concerns listed in Horne's memo. Horne testified
that appellant was not given advance notice of the agenda in order
to prevent him from "pre-framing" his responses. Although the
parties differ on certain particulars of the meetings, they agree
that appellant made a commitment to address each of the eight
items. In response to questions about sales performance, appellant
explained that he had credited much of his own personal business to
Doug Mercer, the senior sales associate in the office. Treu's
notes of the meeting on the first day report that Wallace also
attributed his lower performance to other factors, including
concern about his daughter's health. In his deposition, however,
appellant testified that he may have made reference to his
daughter's illness, but said that her health was not a distraction
that affected his work for Tanner. He attributed his lower numbers
entirely to the allocation of his business to Mercer and agreed to
meet with his staff to re-assign the credit for sales that he --
Wallace -- had generated.1 He also promised quick action on other
issues, stating that a lease and the signed confidentiality
1
At oral argument, Wallace's counsel asserted that the
company's claim of lower sales performance was inaccurate and thus
evidence of pretext. By agreeing to pursue re-allocation of
business, however, Wallace effectively acknowledged that the
company's figures were based on the information available to it.
Wallace also emphasizes that his sales at the end of his tenure
were affected by the loss of a major customer, Digital Equipment
Corp., which chose a competitor that underbid Tanner by $500,000.
Wallace contends that he was not allowed by his superiors to lower
Tanner's bid to meet the competition.
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agreement would be submitted early the next week, and he would
"dial in" on his laptop immediately.
Treu and Horne returned to Utah on Wednesday, August 28. On
Friday, August 30, the Boston office administrator, Patty Prew,
separately called two headquarters employees who worked in the
sales promotion and customer service departments, apparently to
express surprise that appellant had not been fired. Prew told the
two employees, Kathie Lewis and Carol Anderson, that appellant was
not actively involved in the region's business and was spending
substantial time on other, personal activities. Prew asked that
Horne call her at home the next day so that she could communicate
her concerns directly to him. In a ninety-minute phone
conversation with Horne, she reported that appellant had paid
little attention to Tanner business for the past two years because
of his preoccupation with a personal real estate investment. He
had purchased a large parcel of land that he hoped to develop for
commercial, residential and recreational uses.
Aware that Prew was unhappy with appellant because she felt
underpaid,2 company officials sought confirmation of her
information from other sources. Anderson, one of the headquarters
employees whom Prew had contacted, told Horne and Treu that her
once-regular contacts with appellant had dropped off in the
2
Appellant, in fact, had told Treu and Horne during their
meetings earlier in the week that Prew had become a problem in the
office because of her dissatisfaction with her pay.
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previous year or so.3 Lewis reported only two conversations with
appellant during the eight months she had been working with his
region. Horne spoke with Mercer -- ultimately appellant's
successor -- who reported that appellant was no longer heavily
involved in Tanner business. Horne and Treu also did an online
search of Boston area newspapers and found that they were "full of
articles" covering meetings and "battles" concerning appellant's
real estate project; Treu's notes describe the coverage as "one of
the biggest ongoing stories of the year." According to Horne's
deposition testimony, this information "filled in the unanswered
question . . . as to what had really gone on here, and it created,
in our mind, the perception that [appellant] had not been
forthright in his answers to us as to why he was distracted."
The four officers who had met previously to discuss
appellant's work situation -- Horne, Treu, CEO Ostler and company
president Murdock -- again consulted and decided to terminate him.
Murdock testified that the company officials felt "duped" and
"misled" by the discussions with appellant in Boston the previous
week, concluding that "he was collecting a lot of money for not
doing anything at O.C. Tanner." Horne and Treu flew to Boston and
told appellant on September 5 that he was being terminated,
3
In Treu's notes of an August 30th conversation with
Anderson, he reported that she had not spoken with appellant "more
than a couple of times in ages," and she told him that "even our
Boston customers make fun of the fact that Tom is no longer
involved."
Appellant, however, notes that he had the discretion to
delegate contact with Anderson and Lewis to his staff; Anderson
acknowledged in her deposition that Prew was her main contact in
the Boston office.
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attributing the decision to his involvement with the real estate
development.
In depositions and documents, appellant offered a competing
version of his work habits. He disputed the contention that he was
neglecting his Tanner duties in favor of the real estate project,
stating that he spent relatively little time on the development.
He stated that he devoted full days to Tanner business, though he
worked often at home and sometimes in the middle of the night. His
counsel elicited from both Prew and Mercer an acknowledgment that
they did not know either how he spent his time away from the office
or what he was doing when he was in the office.
To prove that his termination was not only unjustified, but
motivated by age discrimination, appellant offered evidence of
statements by three Tanner officials. All but one occurred during
the mid-1990s and involved comments by Horne's two predecessors as
Director of Sales, Duckworth and Brent West. According to
appellant, West was the first to ask about his retirement plans.
Appellant responded that he had no plans to retire and intended to
remain with Tanner until age sixty-five. When West asked the same
question about six months later, appellant gave the same answer,
prompting West to reply: "Well, Tom, don't you think that, you
know, you get tired of this business, and 65 is a long way away."
The issue of appellant's retirement came up again when Mercer,
his associate sales representative, bypassed opportunities to apply
for Regional Sales Manager positions in other areas of the country.
Duckworth asked appellant why the thirty-six-year-old Mercer did
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not seek the positions and was told that he did not want to leave
New England. Duckworth then asked appellant when he planned to
retire. This occurred twice, and appellant informed Duckworth both
times that he planned to stay on until age sixty-five.
The final age-related episode occurred during the meeting in
which Tanner officials decided to fire appellant. Murdock, the
company president and a former trial lawyer, asked about Wallace's
birth date. According to Murdock's testimony, he noted at the
meeting that appellant was in the protected class for age
discrimination, and that "if he decided to sue over his
termination, . . . he would probably have to hang his hat on age
discrimination, but since we weren't doing that, we should go
ahead." Horne's notes of the meeting include a notation of
appellant's age, date of birth, and years of service.
The district court concluded that appellant had not advanced
sufficient evidence to support a finding that he was terminated
because of his age. Wallace v. O.C. Tanner Co., 177 F. Supp. 2d
73, 77 (D. Mass. 2001). The court noted that, even if it
disregarded the defense that Wallace was terminated for neglecting
his work in favor of the real estate project, his evidence at best
supported the conclusion that Tanner fired him because it knew that
Mercer did not want to leave New England and it preferred Mercer to
Wallace when faced with the choice.
On appeal, appellant contends that summary judgment was
improper because he proffered sufficient evidence for a jury to
conclude that Tanner's reason for firing him was pretextual, and
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that the company's decision to replace him with his subordinate was
motivated by the age difference between the two men. Our
examination of the record, conducted de novo, see Rivera-Rodríguez
v. Frito Lay Snacks Caribbean, 265 F.3d 15, 21 (lst Cir. 2001),
persuades us that summary judgment was appropriate.
II. Discussion
Plaintiffs on appeal present their case under the familiar
McDonnell-Douglas-Burdine-Hicks burden-shifting framework. See
McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973);
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256
(1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 515
(1993); see also Rivera-Rodríguez, 265 F.3d at 25.4 We jump over
that starting point here, however, as both parties direct our focus
to the ultimate question: whether the totality of the evidence,
including inferences in plaintiff's favor, "has raised a genuine
issue of fact as to whether the termination of the plaintiff's
employment was motivated by age discrimination," Domínguez-Cruz v.
Suttle Caribe, Inc., 202 F.3d 424, 431 (lst Cir. 2000); see id. at
430 ("At the summary judgment phase, 'courts should not unduly
complicate matters . . . by applying legal rules which were devised
to govern the basic allocation of burdens and order of proof.'"
(citation omitted)).
As the district court recognized, appellant's case inevitably
stands or falls based upon the strength of his evidence that the
4
Wallace brought claims under both the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the Massachusetts
Fair Employment Practices Act, Mass. Gen. L. ch. 151B, § 4.
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actual trigger for his discharge was age-based animus -- whatever
the reason asserted by his employer. See Domínquez-Cruz, 202 F.3d
at 430 ("'The central question in any employment-discrimination
case is whether the employer would have taken the same action had
the employee been of a different . . . age . . . and everything
else had remained the same.'") (quoting Carson v. Bethlehem Steel
Corp., 82 F.3d 157, 158 (7th Cir. 1996)). The evidence appellant
proffers simply does not have sufficient weight to support such a
conclusion.
None of the inquiries from West and Duckworth about his
retirement plans had significant probative value; they were brief,
stray remarks unrelated to the termination decisional process.
See, e.g., Shorette v. Rite Aid of Maine, 155 F.3d 8, 13 (lst Cir.
1998) (asking the plaintiff "how old he was and when he planned to
retire" was "a textbook example of an isolated remark which
demonstrates nothing"). The longest of the four exchanges -- when
West observed that sixty-five "was a long way off" and suggested
that appellant would get tired of the business -- occurred during
a conversation in which West expressed concern about his own tenure
and an anticipated demotion. Nothing in the circumstances reflects
West's or the company's inclination to end appellant's employment
based on his age.
Although Duckworth's questions arose in the context of the
younger Mercer's future with Tanner, there was no accompanying
suggestion that appellant's value to the company had diminished
because of his age; certainly, company officials are permitted to
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gather information relevant to personnel planning without raising
the specter of age discrimination. See, e.g., Cox v. Dubuque Bank
& Trust Co., 163 F.3d 492, 497 (8th Cir. 1998) ("[M]any courts have
recognized that an employer may make reasonable inquiries into the
retirement plans of its employees."); Colosi v. Electri-Flex Co.,
965 F.2d 500, 502 (7th Cir. 1992) ("[A] company has a legitimate
interest in learning its employees' plans for the future, and it
would be absurd to deter such inquiries by treating them as
evidence of unlawful conduct.").
Whatever possible weight these comments might have had if
either Duckworth or West had been involved in, or consulted on, the
decision to fire appellant is circumscribed -- if not entirely
negated -- by the fact that neither of them played a role in the
termination. See, e.g., Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 55 (lst Cir. 2000) ("Typically, statements made
by 'one who neither makes nor influences [a] challenged personnel
decision are not probative in an employment discrimination
case.'"); Shorette, 155 F.3d at 13 ("'[S]tatements by
nondecisionmakers, or statements by decisionmakers unrelated to the
decisional process itself' normally are insufficient to prove [an]
employer's discriminatory animus."). Moreover, the most recent of
the four comments (West's reference to sixty-five as "a long way
off") occurred in "late 95, 96," while at least one of the comments
occurred in 1994 or earlier, further diminishing their collective
probative value. See, e.g., Straughn v. Delta Airlines, Inc., 250
F.3d 23, 36 (lst Cir. 2001) (stating that even comments by
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decisionmakers have limited probative value when they are
"temporally remote from the date of the employment decision,
or . . . were not related to the employment decision in
question . . . .").
Murdock's comments are only superficially more potent. To be
sure, he was a crucial decisionmaker, and appellant's termination
was the very purpose of the meeting in which the references to age
-- indeed, to age discrimination -- were made. Murdock's testimony
that the discussion focused not on appellant's age per se, but on
the possibility that he would bring an age discrimination lawsuit
is inherently plausible, however, and appellant offers no evidence
to cast doubt on its credibility. Although such discussions may be
documented only rarely in an employer's notes, we think it likely
that the potential for legal action is routinely addressed when
company officials meet to consider terminating an employee. See,
e.g., Keller v. ORIX Credit Alliance, Inc., 130 F.3d 1101, 1113 (3d
Cir. 1997) (en banc) (discounting evidence that employer described
the possibility of litigation as a "problem" because "[n]eedless to
say, even an ultimately unsuccessful claim may constitute a
'problem'"); Partington v. Broyhill Furn. Indus., Inc., 999 F.2d
269, 271 (7th Cir. 1993) ("No inference of guilt can be drawn from
awareness of one's legal obligations; to do so would be to promote
the ostrich over the farther-seeing species."); Flebotte v. Dow
Jones & Co., 51 F. Supp. 2d 36, 42 (D. Mass. 1999) (stating that
handwritten notes referring to "age issue" and discussion about age
discrimination suit "indicate the commonplace awareness of the risk
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of litigation an employer runs when firing an employee in a
protected group"). To cast doubt on Tanner's explanation in these
circumstances, appellant needs to do more than simply speculate
that its motive may have been sinister. This case is unlike
Dominguez-Cruz, 202 F.3d at 433, where notes of the termination
discussion referred to both "age" and "age discrimination" and used
the word "cover-up."
Thus, even if Tanner's articulated rationale for firing
appellant were unsubstantiated and unpersuasive, appellant would
have fallen short in his effort to prove that the termination was
a product of age discrimination. Here, however, the company's
explanation for its decision is without meaningful contradiction.
Appellant attempts to discredit the company's reliance on the
distraction of his real estate project, but fails to generate a
genuine dispute about the honesty of the company's belief that he
was neglecting his duties in favor of that interest or to adduce
any evidence of stereotyping. See Zapata-Matos v. Reckitt &
Colman, Inc., 277 F.3d 40, 45-46 (lst Cir. 2002) (focus must be on
the perception of the decisionmaker subject to the refinement that
in particular instances, e.g., stereotyping, an employer's good-
faith belief is not automatically conclusive). Accord Gillen v.
Fallon Ambulance Serv., 283 F.3d 11, 29 (lst Cir. 2002). He merely
hypothesizes an elaborate scheme in which the company's original
intent to fire him in August, when Horne and Treu visited Boston,
was frustrated by his willingness to repair the identified problems
with his work, requiring the company to devise an alternative
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pretextual basis for dismissal. But as an at-will employee,
appellant could have been terminated without being provided any
opportunity to remedy the deficiencies cited by the company; that
he was not fired in August based on Horne's list of concerns
supports the company's assertion that the discharge stemmed from
its discovery of new information.5
Moreover, it is undisputed that the sequence of events
directly leading to appellant's termination began with an
unsolicited call from Prew, whose report of deficient performance
was seemingly substantiated by objective sources: (1) a number of
newspaper articles showed various aspects of the ongoing story of
appellant's real estate venture, and (2) two headquarters employees
with no personal stake in appellant's future confirmed his lesser
involvement with the main office. These reports certainly do not
prove that appellant was neglecting his duties, and one could
criticize the decision not to allow him to respond, simply as a
5
Appellant argues that Tanner's quick turnaround from
allowing him to improve to firing him shows that the company was
"motivated to accept uncritically any new reason to accomplish the
termination," and he cites Hodgens v. Gen. Dynamics Corp., 144 F.3d
151, 168-69 (lst Cir. 1998), for the proposition that a court
assessing discriminatory motive may consider "the specific sequence
of events leading up to the challenged decision." We agree with
his legal proposition, but disagree that it assists his claim.
First, even if the company's change in position were
suspicious, it would not be probative of age-based animus. See
Zapata-Matos, 277 F.3d at 45 ("[T]he ultimate question is not
whether the explanation was false, but whether discrimination was
the cause of the termination."). Second, a sudden change of heart
by the company is consistent with its expressed reason for the
discharge. Although Tanner had decided to give him a chance to
improve, when "confirmation" of his deficient performance and the
"explanation" for it appeared, the company plausibly could have
leapt to the conclusion -- perhaps unfairly -- that he had deceived
them.
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courtesy, after nearly twenty years of mostly excellent
performance. The failure to do so, however, does not prove -- or
even suggest -- age bias.
Appellant essentially argues that the various wisps of age-
related evidence, woven together and viewed in his favor, are
enough to permit a jury to find in his favor. We cannot agree.
The references to age have virtually no probative value, and the
objective evidence substantiates the company's asserted
justification.6 Although the record would permit a jury to
conclude that the company wrongly attributed changes in appellant's
work patterns to his involvement with the real estate project, it
would not permit a finding that that rationale served as a pretext
for age discrimination. Cf. Santiago-Ramos, 217 F.3d at 56 (a
plaintiff can demonstrate pretext by identifying "'weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
in the employer's proffered legitimate reasons'") (internal
citation omitted).7 Without meaningful indicators of age-based
6
Appellant's contention that Tanner's explanation for the
termination shifted over time is without support in the record.
The company consistently attributed its decision to appellant's
involvement with the real estate project and his failure to discuss
the project at the August meeting with Horne and Treu. See, e.g.,
App. at 20-21, 305-06, 361-64, 376-78. Appellant's assertion,
unsupported by documentary evidence, that the company "focused" on
his sales performance before the Massachusetts Commission Against
Discrimination does not create a contradiction in the company's
statements.
7
Appellant misfires in criticizing the district court for
attributing his termination to the company's desire to retain
Mercer while failing to recognize that a jury must make a factual
finding on the reason for that preference. The district court did
not make any finding on the reason for termination. It simply
accepted appellant's own assertion that the company fired him
because it preferred Mercer, and concluded that there was
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animus, and in the absence of evidence to undercut the company's
credibility, summary judgment for Tanner was proper.
The judgment of the district court is affirmed.
insufficient evidence of age bias to warrant a jury determination.
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